Sedco Forex International Inc vs. CIT (Supreme Court) - 30 Oct 2017
Question of law: Whether sec 44BB is an overriding section and hence should be used over all profits / gains arises from the specific business or should analysed in the light of sec 5 & Sec 9 and other facts of the matter before arriving the taxable amount as per sec 44BB?
Some important facts/ discussion points of the case for easy reference:
1- Sub-section (1) of sec 44BB is a non-obstante clause, starting with the expression ‘notwithstanding anything to the contrary contained in Sections 28 to 41 and Sections 43 and 43A’. Thus, once we apply this special provision for computation of profits and gains, provisions for computation of such profits as contained in Sections 28 to 41 and Sections 43 and 43A of the Act stand excluded,
2- In order to attract the provisions of Section 44BB of the Act, two conditions are to be specified, namely, (i) assessee has to be a non-resident; and (ii) assessee should be engaged in the business of exploration etc. in mineral oils of the nature specifically spelled out in the provision,
3- Choice is given to such an assessee under sub-section (3) of the Act to either claim lower profits and gains than the profits and gains specified in sub-section (2) and covered by normal provisions of computing profits and gains of business or profession, subject to fulfilling the conditions of audit etc. as mentioned therein or to be governed by Section 44BB of the Act.
4- The assessees herein had entered into contracts primarily with Oil and Natural Gas Commission (ONGC), a public sector company, for hire of their rig for carrying out oil exploration activities in India. For this purpose, they were paid mobilisation fee as well, for and on account of mobilisation/movement of rig from foreign soil/country to the off-shore side at Mumbai (India). The issue that has fallen for consideration is as to whether aforesaid amount received is to be included for computation of deemed profits and gains of the business, chargeable to tax under Section 44BB of the Act.
5- It was discussed during the case "Explaining the taxation of income scheme enumerated under Sections 4, 5 and 9 of the Act, Mr. Kaka submitted that globally the tax systems can be classified broadly into two models; Worldwide and Territorial system. India follows a territorial system of taxation specially qua business income of non-residents, which is taxed only as it is attributable to operations within the Indian territory."
6- It was submitted that, no doubt, Sections 44B, 44BB, 44BBB etc. provide for special mechanism for computing the income in the case of non-residents on presumptive basis. However, even when the income is to be computed under any of these provisions, first pre-requisite is to find out as to whether a particular income has accrued or arisen or deemed to accrue or arise in India. If that threshold is not met, the question of treating such payments as ‘income’, merely because the income is to be computed under special provision, is of no consequence,
7- A computation provision like Section 44BB cannot override the charging provisions of Sections 4 and 5. It is so stated in the instruction No. 1767 dated July 1, 1987 issued by the CBDT. The understanding of the CBDT is binding on the Revenue.
8- Additionally, he submitted that insofar as Section 44BB of the Act is concerned, it only provides a simplified computation mechanism for computing profits and gains in case of non-resident assessee engaged in activities relating to business of exploration of mineral oil etc. Thereby, overriding the normal computation mechanism contained in Sections 28 to 41, 43 and 43A of the Act. His emphasis was that this provision does not override charging provisions as contained in Section 4 read with Sections 5 and 9 of the Act, thereby bringing to tax an amount which is not at all taxable under the provisions of the Act,
9- Thus, 10% is the income and the rest 90% is allowed as expenditure/allowable claims of the assessee. Assuming that Section 44BB was not on the statute book, assessee would have shown mobilisation fee as receipt and claimed the actual expenditure and arrived at the net taxable income. Now, Section 44BB presumes that only 10% of the aggregate receipts is income and the remaining 90% is expenditure. It was also argued that in the case of presumptive income determination like Section 44BB, items of expenditure cannot be claimed separately, otherwise it would lead to double deduction as Section 44BB presumes that only 10% of the aggregate receipts is income and the remaining 90% is expenditure.
10- Learned court hence concluded the case - "in the instant case, the amount which is paid to the assessees is towards mobilisation fee. It does not mention that the same is for reimbursement of expenses. In fact, it is a fixed amount paid which may be less or more than the expenses incurred. Incurring of expenses, therefore, would be immaterial. It is also to be borne in mind that the contract in question was indivisible. Having regard to these facts in the present case as per which the case of the assessees get covered under the aforesaid provisions, we do not find any merit in any of the contentions raised by the assessees"
For reading full text of the case please refer link - http://itatonline.org/archives/sedco-forex-international-inc-vs-cit-supreme-court-s-44bb-amounts-received-as-mobilisation-fee-on-account-of-provision-of-services-and-facilities-in-connection-with-the-extraction/sedco-forex-44bb-mobilisation-fee/
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